Fresno Municipal Code Art. 3 Code Enforcement; Judicial and Administrative Remedies and Procedures

The Council finds that the enforcement of the Fresno Municipal Code and other applicable laws throughout the city is an important public service. Code enforcement is vital to protection of the public's health, safety, and quality of life. The Council recognizes that enforcement starts with precise regulations that can be understood by city officials and members of the public and effectively applied in administrative enforcement hearings and judicial proceedings. The Council further finds that a comprehensive code enforcement system that uses a combination of judicial and administrative remedies is critical to gain compliance with code regulations.

(Added Ord. 98-63, § 2, eff. 10-1-98; Am. Ord. 2007-55, § 4, eff. 9-4-07).

(a) The City Manager or any of his or her designated enforcing officers as set forth in this Code have the authority and powers necessary to gain compliance with the provisions of the Code and applicable laws. The term "enforcement officers" includes any city employee vested with authority to enforce the Code, which also includes any employee or person under contract with the City Attorney appointed to investigate and/or prosecute violations of this Code. These powers include the power to inspect public and private property and use whatever judicial and administrative remedies are available under the Code or applicable laws.

(b) Notwithstanding any Code provision otherwise, and in addition to any authority granted the Director or others, but excluding any authority granted solely to the Police Chief or Police Department, the City Attorney, pursuant to Charter section 803(b), shall have the authority and discretion to investigate and prosecute any violations of this Code by administrative citation, civil action, and/or criminal prosecution.

(c) Where the Director or City Manager has authority to enforce the code or approve regulations to implement or interpret the code, such authority shall also be granted to the City Attorney.

(Added Ord. 98-63, § 2, eff. 10-1-98; Am. Ord. 2007-55, § 4, eff. 9-4-07; Am. Ord. 2018-46, § 1, eff. 9-17-18; Am. Ord. 2019-019, § 1, eff. 9-19-19).

Any enforcement officer shall also have authority to enter upon any property or premises to ascertain whether provisions of the Fresno Municipal Code or applicable state codes, regulations, or ordinances are being obeyed, and to make examinations and surveys as may be necessary in the performance of their duties. These may include taking photographs, video, samples, or other physical evidence. All inspections, entries, examinations, and surveys shall be done in a reasonable manner and where entry onto the premises is necessary with the consent of the owner, agent, or occupant. If an owner, occupant, or agent refuses permission to enter or inspect, the enforcement officer may seek an inspection warrant pursuant to the procedures provided for in Code of Civil Procedure Sections 1822.50 through 1822.59 or their successors to perform duties imposed upon said person.

(Added Ord. 98-63, § 2, eff. 10-1-98; Am. Ord. 2007-55, § 4, eff. 9-4-07).

(a) Except for violations of the City Charter or as otherwise specified in this Code, any person convicted of a misdemeanor under the provisions of this Code shall be punishable by a fine of not exceeding one thousand dollars ($1,000.00) or by imprisonment in the Fresno County jail for a period of not more than one year, or by both such fine and imprisonment.

(b) Any person violating any of the provisions or failing to comply with any of the requirements of this Code shall be guilty of a misdemeanor unless:

(1) Such Code provision makes violation thereof an infraction; or

(2) The City Attorney files a complaint charging the offense as an infraction; or

(3) The court, with the consent of the defendant, determines that the offense is an infraction, in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint; or

(4) The city, at its discretion, may issue an administrative citation and civil penalty in lieu of charging any violation of the Code as a misdemeanor or an infraction. The enforcement of those civil penalties shall be governed by the civil administrative citation procedures set forth in this article or as more specifically provided in other provisions of the Code.

(c) Any person convicted of an infraction under the provisions of this Code herein shall be punishable by

(1) a fine not exceeding one hundred dollars ($100.00) for a first violation;

(2) a fine not exceeding two hundred dollars ($200.00) for a second violation of the same provision within one year of the date of the first violation;

(3) a fine not exceeding five hundred dollars ($500.00) for each additional violation of the same provision within one year of the date of the violation.

Except as otherwise provided by law, all provisions of law or ordinance relating to misdemeanors shall apply to infractions.

(d) Each person shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this Code is committed, continued, or permitted by such person and shall be punished accordingly.

(e) In all cases where the same offense is made punishable or is created by different clauses or sections of this Code, the City Attorney may elect under which to proceed; but not more than one recovery shall be had against the same person for the same offense.

(f) The City Attorney has discretion to institute the appropriate civil action to ensure compliance with the Fresno Municipal Code, including an action for a temporary restraining order, a preliminary or permanent injunction, a receivership, or an action to recover any damages incurred as a result of any Code violation.

The City Attorney may pursue the remedy of a receivership when the property is a parcel within the City of Fresno; the property has extensive and continuing violations of the Fresno Municipal Code, California Fire Code, California Building Code, California Health and Safety Code or extensive ongoing criminal activity; and the property's record owner has shown an unwillingness or inability to correct the violations.

(Added Ord. 98-63, § 2, eff. 10-1-98; Am. Ord. 2002-51, § 10, eff. 10-31-02; Am. Ord. 2007-55, § 4, eff. 9-4-07; Am. Ord. 2015-40, § 1, eff. 1-21-16).

(a) The provisions of Part 2, Title 3, Chapter 5c of the Penal Code, as amended, shall govern the procedures required for criminal enforcement of the Fresno Municipal Code.

(b) Criminal Citation Officer. When in this Code, or in any other ordinance of the city, an officer or employee of the city is empowered to enforce, or charged with the duty of enforcing, any particular provision or provisions of this Code or of any other ordinance of the city, the violation of which provision or provisions would constitute a misdemeanor or infraction, the officer or employee so empowered, or so charged with such duty, shall have the authority to arrest without warrant and to issue criminal citations as set forth in this section for the purpose of enforcing this Code. Such public officer or employee shall be deemed a criminal citation officer and shall have all the powers and protection, as conferred pursuant to California Penal Code § 836.5.

(c) Training Requirements. Before a criminal citation officer may exercise criminal citation authority pursuant to this section, that officer or employee must complete an enforcement training program established at the discretion of the Chief of the Fresno Police Department. The training program shall be designed to instruct officers and employees regarding:

(1) The provisions of this Code to be enforced;

(2) The evidentiary prerequisites to proper prosecution for violations thereof;

(3) The procedural requirements of citations, including completion of the forms, processing and amendment of citation forms; and

(4) The limitations attendant thereto.

(d) Criminal Citation Authority. In addition to the Police Chief and peace officers employed by the Police Department, upon completion of the training prescribed by subsection (c), the following officers and employees have the authority to issue criminal citations, both misdemeanor and infractions: City Manager, Director of Administrative Services, Director of Housing and Neighborhood Revitalization, Planning and Development Director, Director of Public Utilities, Public Works Director, City Attorney, and Fire Chief. This authority relates only to Fresno Municipal Code criminal citations.

(e) Delegation. An officer or employee designated in subsection (c) has the authority to appoint employees to assist in the enforcement responsibilities. Such employees shall likewise have the authority to issue criminal citations following the written confirmation by the City Manager of the appointment of such employees by the officers designated in subsection (b) and completion of the training required by subsection (c).

(f) Notice to Appear. Citation officers vested with criminal citation authority pursuant to this section, may, pursuant to Sections 836.5, 853.5 and 853.6 of the California Penal Code, issue a citation in the form of a NOTICE TO APPEAR to a person where any such citation officer has probable cause to believe that the person to be issued the citation has violated a provision of this Code in the citation officer's presence, which the citation officer had the discretionary duty to enforce, and therefore, has committed a misdemeanor or infraction.

(g) Release on Written Promise to Appear. A criminal citation officer exercising the authority pursuant to this section may release the person to be issued a citation on his or her written promise to appear in court. The citation officer shall under no circumstances take the person to be issued a citation into custody.

(h) Refusal to Sign. In the event that the person to be issued a citation refuses to provide his or her written promise to appear in court, a citation officer may summon a Fresno Police Department peace officer and request that such peace officer take the person into custody. If the person demands to be taken before a magistrate, the citation officer may summon a Fresno City Police officer and request that such peace officer take the person into custody, or seek assistance of the City Attorney and request that a complaint be prepared and filed against that person.

(i) Filing and Maintenance of Files. Criminal citation officers having a duty to enforce the provisions of this Code, and who exercise the authority to issue a citation pursuant to this section, shall maintain a file of executed citations and such citations shall be forwarded to the City Attorney's office for issuance of a complaint and filing with the appropriate magistrate.

(j) Additional Authority. Nothing in this section shall be considered to limit any authority otherwise vested in the named officers and employees, provided elsewhere in this Code, or by State law.

(Added Ord. 98-63, § 2, eff. 10-1-98; Am. Ord. 2007-55, § 4, eff. 9-4-07; Am. Ord. 2019-019, § 2, eff. 9-19-19).

Any person willfully violating his or her written promise to appear in court is guilty of a misdemeanor regardless of the disposition of the charge upon which the person was originally arrested.

(Added Ord. 98-63, § 2, eff. 10-1-98; Added Ord. 2007-55, § 4, eff. 9-4-07).

The Police Chief and all peace officers employed by the Police Department are hereby empowered to enforce, and are charged with the duty of enforcing, any and all provisions of this Code or of any other ordinance of the city, including the power to arrest for such violations in accordance with the laws of the State of California, together with such other powers as are conferred upon them by the city. The Police Chief may authorize employees of the Police Department, excepting employees whose duties do not fall within the scope of law enforcement services, to enforce any and all provisions of the statutes of the State of California, of this Code, or of any other ordinance of the city where the violation of such provision or provisions would constitute an infraction, including the power to cite for such violations in accordance with the laws of the State of California. The Chief of Police may also authorize said employees to regulate traffic at the scenes of accidents or disasters or at such locations as may require traffic direction for orderly traffic flow, and to remove vehicles from highways, public property, and private property, when authorized by state law or local ordinance.

(Added Ord. 98-63, § 2, eff. 10-1-98; Am. Ord. 2007-55, § 4, eff. 9-4-07).

The Council finds that there is a need for an alternative method of enforcement of violations of the Municipal Code. The Council further finds and declares that an appropriate method for enforcement for violations of the Code is the following administrative citation and civil penalty program.

(a) Administrative Citation. Any person violating any provision of the Code may be issued an administrative citation by an enforcement officer as provided in this article. A separate civil penalty for each violation of the Code may be assessed by means of one administrative citation. Violations deemed a threat to health and safety as defined in this Code or pursuant to Health and Safety Code Section 17920.3 shall be penalized as set forth in the Master Fee Schedule.

(b) Contents. Upon discovering or observing any violation of the Municipal Code, an enforcement officer may issue an administrative citation, in a form approved by the City Attorney, to a violator or property owner, with the following contents:

(1) Date and location of the violation(s), including the street address, if any, and the approximate time the violation(s) were observed;

(2) Section(s) of the Code violated and brief description of how the section(s) are violated; if the citation is for a violation of the Management of Real Property Ordinance set forth in Chapter 10, Article 7, the citation shall include a statement specifying the behaviors which constitute the nuisance.

(3) Description of the action required to correct the violation(s), if applicable; and if applicable, the date by which the violation must be corrected.

(4) Statement explaining the consequences of failure to correct the violation(s);

(5) Amount of penalty imposed for the violation(s);

(6) Explanation of how the penalty shall be paid and the time period by which it shall be paid, and the consequences of failure to pay the penalty;

(7) Right to contest the contents of the administrative citation and right of appeal, including the name and address of the City Manager for purposes of filing any notice of appeal; and

(8) Signature of the enforcement officer.

(c) Issuance. The enforcement officer shall attempt to issue the citation to the responsible party for any violation of this Code. For purposes of issuance of a citation to a business, the citation may be issued to the person in immediate control of the business on site at the time of the issuance of the administrative citation and penalty. The citation officer may, but is not required, to obtain the signature of the person upon whom the citation was issued. The lack of signature shall in no way affect the validity of the citation and subsequent proceedings.

(d) Issuance When Unable to Locate Violator. If the enforcement officer is unable to locate the violator(s) then the administrative citation shall be mailed to the responsible party and property owner, if different than the violator. Administrative citations issued for violations of the provisions in Chapter 10, Article 3 of the Municipal Code (Animal Shelter) shall be mailed to the violator(s) or property owners(s) by first class mail with proof of service. Proof of service shall be documented at the time of service by a declaration under penalty of perjury executed by the person effecting service, declaring the time and manner in which the service was made. All other administrative citations shall be mailed to the violator(s) or property owners(s) by certified and first class mail. The failure of any person with an interest in the property to receive such notice shall not affect the validity of any proceedings taken under this chapter. Notice by the methods described above shall become effective on the date of mailing.

(e) Imposition of Penalty. An administrative citation issued for a violation of a building, plumbing, electrical, or other structural or zoning regulation, that does not create an immediate danger to public health or safety, may be issued to the responsible party, and the citation shall state the date by which the violation must be corrected, which shall be a reasonable period of time, given the circumstances; 18 calendar days shall be a default time to correct, unless the circumstances indicate a shorter or greater time is appropriate. It shall be the responsibility of the person receiving the citation to correct the violation and provide proof to the city that it has been corrected, as set forth in the citation, or call for an inspection, as set forth in the citation, to verify the correction was made on or before the date specified on the citation. If the correction was fully and timely made, then the citation, or that part of the citation, shall be dismissed. If the correction was not fully and timely made, then the citation shall continue and penalties shall be deemed final, and failure to correct shall be deemed a continuing violation until the specified violations are verified as corrected by the city, with further penalties incurred as set forth in this Code. An administrative citation issued for a violation of a state law or this code that is a nuisance, for example, parking a vehicle on an unimproved surface, not otherwise a violation of a building, plumbing, electrical, or other structural or zoning regulation, may be issued to the responsible party immediately, and each successive day the violation continues shall constitute a separate violation with further penalties incurred as set forth in this Code.

(f) Appeal. Any person issued an administrative citation may contest the contents of the administrative citation by filing an appeal under the City's Administrative Ordinance set forth in Article 4. If no appeal is filed within the time prescribed, the penalty shall be final and immediately payable.

(g) Penalty. Except as otherwise set forth in this Code, the Master Fee Schedule shall establish the base schedule for the amount of the civil penalty assessed for code violations, which may vary by types and numbers of violations.

(h) Failure to Correct. If the violator or property owner fails to correct the violation, subsequent administrative citations and penalties may be issued for the same violation(s) or the city may institute any other applicable action permissible under this Code to gain compliance. The amount of the penalty for each subsequent violation of the same Code provision shall increase at a rate specified in this Code.

(i) Payment of Fine Without Correction of Violation. Payment of any penalty shall not excuse the failure to correct the violation nor shall it bar further enforcement action by the city. The failure of any person to pay any penalty assessed by administrative citation within the time specified on the administrative citation shall result in the assessment of an additional late fee to be charged. The amount of the late fee shall be ten percent of the total amount of the civil penalty due and owing.

(j) Collection of Penalty. The city shall collect delinquent and late fees under the provisions of the Cost and Penalty Recovery Ordinance in Chapter 1, Article 5 of the Code.

(k) Authority to Issue Administrative Citation. The following officers and employees have the authority to issue administrative citations and civil penalties: City Manager, City Attorney, Planning and Development Director, Director of Public Utilities, Public Works Director, Police Chief and Fire Chief, and Director of Parks and Recreation and any other person delegated such authority by any of the above.

(l) Payment of Penalty and Use of Proceeds. Except as otherwise provided, all civil penalties assessed shall be payable to the city.

(Added Ord. 98-63, § 2, eff. 10-1-98; Am. Ord. 2002-51, § 11, eff. 10-31-02; Am. Ord. 2003-20, § 2, eff. 4-1-03; Am. Ord. 2005-14, §§ 19, 20, eff. 4-9-05; Am. Ord. 2007-55, § 4, eff. 9-4-07; Am. Ord. 2010-50, § 1, eff. 1-16-11; Am. Ord. 2016-38, § 1, eff. 10-20-16; Am. Ord. 2018-46, § 1, eff. 9-17-18; Am. Ord. 2019-035, § 1, eff. 11-11-19).

When in this Code, or in any other ordinance of the city, an officer or employee of the city is empowered and has the duty to issue a regulatory permit, and the officer or employee has reason to believe that the applicant is engaged in, or has on his premises a violation of law, ordinance, or city regulation, and exercise of the permit will propagate, encourage, or perpetuate the violation, then the officer or employee, with the approval of the City Attorney, may refuse to issue the permit until such time that it is established that the violation has been abated or does not exist, provided that the officer or employee may, with the permission of the City Attorney, issue the permit upon conditions reasonably calculated to eliminate the violation and in such case the permit may be revoked upon failure to perform or conform to the condition.

(Added Ord. 98-63, § 2, eff. 10-1-98; Added Ord. 2007-55, § 4, eff. 9-4-07).

Except as otherwise provided in Section 1002 of the Charter, the provisions of Section 1094.6 of the California Code of Civil Procedure shall be applicable to all adjudicatory decisions of the Council, any board or commission established pursuant to the Charter or this Code, and any hearing officer pursuant to the Administrative Hearing Ordinance in Chapter 1, Article 4.

(Added Ord. 98-63, § 2, eff. 10-1-98; Am. Ord. 2007-55, § 4, eff. 9-4-07).